Washington Post: Obamacare Is Constitutional Because It’s Good Policy

Jeffrey H. Anderson

March 27, 2012 3:03 PM

The Washington Post editorial board essentially writes that, because Obamacare is good policy (in the editors’ estimation), and because it would involve the economy, it must also be constitutional. Here is the Post’s argument, in its entirety:

“[W]e believe the government has the better of the policy and legal case for why the individual mandate is necessary and constitutional.

“Health-care services account for some 17 percent of the country’s gross domestic product; today, the average family pays an additional $1,000 annually in the form of higher premiums to subsidize the costs incurred by those who receive care but do not carry insurance. The mandate is an indispensable tool for achieving the government’s compelling goals of universal coverage and lower costs. Insurance companies would be unable to offer affordable coverage to those with preexisting conditions, for example, unless they also were guaranteed enrollment of the young and healthy customers who are less likely to consume health-care services.

“In the recent past, the Supreme Court has struck down attempts by Congress to use the Constitution’s Commerce Clause to promulgate laws that had no connection to commercial activity, including those involving guns near schools and violence against women. Yet it has upheld Congress’s Commerce Clause power to reach individuals who were not obviously involved in commercial activity — most famously, the Depression-era farmer who grew wheat for his own consumption. The court concluded that his decision to grow — rather than purchase — wheat interfered with the government’s ability to regulate wheat prices.

“The same logic should hold true for individuals able but unwilling to buy health insurance: Their absence has a significant impact on the market, especially because it is virtually inevitable that they will need health-care services at some point in their lives.”

Of course, in that Depression-era case (Wickard v. Filburn), which has always been viewed as marking the outer boundary (and, in many quarters, as plainly exceeding the boundary) of congressional power under the commerce clause, the Court didn’t compel anyone to grow wheat.

In short, the Post’s view appears to be that any congressional action in the economic realm that promotes “compelling goals,” is constitutional. This is an extremely broad reading of the power to regulate interstate commerce.

“The argument against the individual mandate…is carefully anchored in constitutional precedent and American history. The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.

“This distinction is crucial. The health-care and health-insurance markets are classic interstate commerce. The federal government can regulate broadly — though not without limit — and it has….But with ObamaCare the government is asserting for the first time that it can compel people to enter those markets, and only then to regulate how they consume health care and health insurance. In a word, the government is claiming it can create commerce so it has something to regulate.

“This is another way of describing plenary police powers — regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.

“The framers feared arbitrary and centralized power, so they designed [a] federalist system…to diffuse and limit power and to guarantee accountability….

“These federalist protections have endured despite the shifting definition and scope of interstate commerce and activities that substantially affect it. The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was ‘an addition which few oppose, and from which no apprehensions are entertained.’ The Father of the Constitution also noted that the powers of the states are ‘numerous and infinite’ while the federal government's are ‘few and defined.’

“That view changed in the New Deal era as the Supreme Court blessed the expansive powers of federal economic regulation understood today….

“The Court, however, has never held that the Commerce Clause is an ad hoc license for anything the government wants to do….

“A thread that runs through all these cases is that the Court has always required some limiting principle that is meaningful and can be enforced by the legal system. As the Affordable Care Act suits have ascended through the courts, the Justice Department has been repeatedly asked to articulate some benchmark that distinguishes this specific individual mandate from some other purchase mandate that would be unconstitutional. Justice has tried and failed, because a limiting principle does not exist.

“The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses — think of housing, or credit-card debt. Health costs are unpredictable — but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage — though then again, similar cost-shifting is the foundation of bankruptcy law....

“Another Administration fallback is the Constitution’s Necessary and Proper Clause, which says Congress can pass laws to execute its other powers. Yet the Court has never hesitated to strike down laws that are not based on an enumerated power even if they’re part of an otherwise proper scheme. This clause isn’t some ticket to justify inherently unconstitutional actions….

“The crux of the matter is that by arrogating to itself plenary police powers, the government crossed a line that Justice Anthony Kennedy drew in his [U.S. v.] Lopez concurrence. The ‘federal balance,’ he wrote, ‘is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of government has tipped the scale too far.’…

“The stakes are much larger than one law or one President. It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.”